Debating diversity on the federal bench

Feb. 23, 2010 – A debate about diversity in the federal judiciary highlighted the uncomfortable intersection of politics and judicial ideology during a lunchtime event Feb. 22.

Duke Law professor of law and political science Neil Siegel squared off against Adam Mortara, a lecturer in law at the University of Chicago and partner at Bartlit Beck Herman Palenchar & Scott in the debate sponsored by, the Federalist Society, the American Constitution Society, and the Law School’s Program in Public Law.

Mortara argued that diversity leading to diverse judicial outcomes is problematic and can end in a “highly unpredictable, highly judge-driven” judicial system.

“In a perfect world, our judge would be a computer,” Mortara said. “A computer would give us consistent outcomes every time. We can change the programming to make it better, we can eliminate human passion and prejudice from the process. That’s an ideal of judging.”

Those who call for a judiciary that exactly reflects the country’s racial, religious, or gender composition are usually being disingenuous about their underlying political motivations, he said.

“It’s all well and good to be in favor of racial or other cultural diversity on the bench, but it really is code for ‘We want more liberals on the bench,’” Mortara said. “Because the groups that are always talked about are groups that are disproportionately composed of liberals. We all know this. I don’t see anybody crying a river about the low number of orthodox Christians on the bench.

“If [progressives are] interested in putting people from a wide variety of ethnic or religious persuasions on the bench, if you want to focus on women or Latinos for instance, there’s this huge deep bench of progressive women and Latinos. But when George W. Bush is casting about to find the four-leafed purple clover of the incredibly conservative, incredibly smart woman, he gives us Harriet Miers.”

Mortara said that ultimately, “we should seek to appoint people to the bench that all agree with a concept.”

“That concept could be pragmatic functionalism like Justice Breyer. That concept could be textualism like I might propose and support. We should be making our case for a more homogeneous federal judiciary, at least… regarding outcomes.”

Siegel argued that diversity of professional background and experience is necessary to ensure that federal judges, especially Supreme Court justices, understand the practical consequences of their decisions on lower court judges and practicing lawyers. Other kinds of diversity also were important to ensure recognition of the court’s legitimacy by the public, he added.

“This is why, historically speaking, we’ve always had strong diversity norms when it comes to the Supreme Court,” he said. “At the beginning of the republic, it was geographic diversity. … At other times it had to do with political party affiliation, and more recently, religious affiliation. Now, as African-Americans, other minorities, and women are really part of the ‘we the people’ that the Constitution names but for so long didn’t include, there is more talk about that kind of diversity.”

But Siegel agreed with Mortara that judicial ideology should be the most important factor in appointing Supreme Court justices.

“I think judicial philosophy, constitutional vision, how you actually decide cases, what you do with the awesome power that a Supreme Court justice has, matter a lot more,” he said. “If you’re an average member of ACS and you’re celebrating Justice Sotomayor and finally having a Latina voice on the court, have the discipline to ask yourself, if we were talking about a highly conservative Latina … would we be celebrating diversity on the federal courts?”

Siegel challenged Mortara’s premise that the judicial system would function best under a monolithic judicial ideology.

“Is that really all you want?” he asked. “Because if you let me appoint the nine justices of the Supreme Court, you can get a whole lot of consistency that the average member of the Federalist Society would not be pleased with.”

Siegel and Mortara also found common ground as they discussed the political rhetoric surrounding judicial appointments.

Too many judges appointed by Republicans under the guise of promoting textualists or originalists to the federal bench, allow their judicial ideology to serve political purposes, Mortara suggested. He agreed with Siegel that constitutional text is indeterminate.

“Textualism has no great historical pedigree,” he said. “It is essentially an invention of the 20th century, largely an invention of one guy — Justice Scalia.” The best way to interpret the Constitution, Mortara said, is to do nothing, or as little as possible. Mortara called such recent high court decisions as District of Columbia v. Heller, and Citizens United v. FEC examples of “conservative judicial activism” by judges who claim not to be activists.

“For those of you who are Federalist Society members in the room, really think about whether the judges we should be lionizing are the judges who are out there with rapacity striking down federal legislation with which we disagree,” he said.